UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 30, 2012
SHAWNE FLETCHER, PLAINTIFF,
LEE BACA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Jacqueline H. Nguyen United States District Judge
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE [DOCKET NOS. 196, 197, 233, 268]
Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First Amended Complaint, all documents filed in connection with the Motion for Judgment on the Pleadings ("Motion for Judgment") and the Motion for Involuntary Dismissal ("Motion for Involuntary Dismissal") filed by defendants Fernandez, Eagar, Duncan, and the County of Los Angeles, all documents filed in connection with the Motion to Dismiss and for a More Definite Statement ("Motion to Dismiss") filed by defendants Aguilar, De La Torre, Lavan, Kennedy, Aguirre, Clinkingbird, Agustines, Enriquez and Wilmore, and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), plaintiff's objections to the Report and Recommendation ("Objections"), and the response to plaintiff's objections ("Response") filed by defendants Fernandez, Eagar, Duncan, the County of Los Angeles, Aguilar, De La Torre, Lavan, Kennedy, Aguilar, Aguirre, Clinkingbird, Agustines, Enriquez and Wilmore.
The Court treats the Motion for Judgment and the Motion to Dismiss as unenumerated Federal Rule of Civil Procedure 12(b) motions.
The Court has made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections. The Court notes, however, that the name E. Aguilar on page 2 at lines 2 and 14-15 of the Report and Recommendation should be E. Aguirre.
Plaintiff, in his Objections, raises for the first time additional and new allegations suggesting that the conduct of prison officials rendered administrative remedies effectively unavailable. (Objections at 2-3). Plaintiff has had more than an ample opportunity to address the exhaustion issue and the Court declines to consider his inherently suspect new allegations raised for the first time in Objections to the Report and Recommendation. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001).
IT IS HEREBY ORDERED: (1) the Motion for Judgment and the Motion to Dismiss are granted to the extent they seek dismissal of plaintiff's claims against the moving defendants based on plaintiff's failure properly to exhaust available administrative remedies; (2) plaintiff's claims against the moving defendants are dismissed without prejudice; and (3) the Motion for Involuntary Dismissal is denied as moot.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Recommendation on plaintiff and on counsel for defendants.
IT IS SO ORDERED
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